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'Series of tactical errors' led to fatal police shooting

The Indian River County Sheriff's Office helped members of the St. Lucie County Sheriff's office with the investigation into the April shooting death of 21-year-old Demarcus Semer. The reconstruction of the shooting was done in the 500 block of North 19th Street in Fort Pierce on Wednesday, April 27, 2016. Semer was shot by Fort Pierce officers during a traffic stop incident earlier in the month.(Photo: ERIC HASERT/TREASURE COAST NEWSPAPERS)

FORT PIERCE — An expert in use of deadly force who reviewed the fatal Fort Pierce police shooting of Demarcus Semer reported the two officers involved made “a series of tactical errors … that led to the use of deadly force,” but that its use wasn't a crime.

The report by Geoffrey Alpert of the University of South Carolina was included in more than 4,000 pages of documents released Tuesday by Chief Assistant State Attorney Tom Bakkedahl after a grand jury decided not to indict Officer Ralph Holmes and Sgt. Brian MacNaught in the death of 21-year-old Semer.

Alpert's report details areas where he believes the officers made mistakes and raises questions about police use and training with in-car camera systems.

Semer’s death happened after Holmes stopped him about 11:55 p.m. April 23 after determining he was traveling 45 mph in a 25 mph area.

According to Alpert, this gave Holmes legal justification to search the car.

MacNaught arrived and Holmes asked Semer for his license. Semer declined to provide it and asked why he was stopped. He eventually provided his license.

Holmes said he didn’t ask Semer to turn off the car. Alpert calls this a “tactical error,” saying a running vehicle can be a threat.

“A well-trained officer, under these circumstances, would have asked the driver to turn off his vehicle and hand the officer his keys,” the report states. “By allowing the driver to keep the car running increases the likelihood that the driver will flee.”

Holmes reached in to open the door of the running car, which Alpert also called a tactical error.

“Officer Holmes had Mr. Semer’s driver’s license and could have located and charged him at a later date without risking his life and the life of anyone in the area,” the report states. “This demonstrates poor training and tactics.”

MacNaught went to the passenger side and opened the running car’s door, putting him in an “unnecessarily dangerous position.”

According to Alpert, MacNaught didn’t need to open the door. He could have asked Semer to open the door if he thought Semer was a threat or he could have opened the door and backed away.

Semer drove off, and Holmes got knocked down. Holmes saw what he reasonably thought was MacNaught being hit and dragged.

“Based on his observations and beliefs during this stressful and rapidly-evolving situation, Officer Holmes fires his weapon to protect the life of Sgt. MacNaught,” the report states. “Based on the totality of circumstances, it would have been objectively reasonable for an officer in Officer Holmes' position to believe that Sgt. MacNaught’s life was in danger or that he was in danger of serious physical harm.”

MacNaught, concerned he’d be trapped between the door and car body, hopped in the passenger seat, obscuring himself from Holmes' view.

MacNaught, when he heard the shots, believed Semer was firing.

“Officers involved in gunfire are likely to experience distortions, including auditory lockout and tunnel vision,” the report states. “It is not impossible for him to have perceived that the gunshots were coming from within the vehicle.”

The State Attorney’s Office asked the Indian River County Sheriff’s Office for reconstruction and analysis of the incident. A report by Detective Sgt. Kyle King was in the documents Bakkedahl released.

Part of that report detailed bringing the vehicle to the St. Lucie County sheriff’s firearms range to test the sound characteristics of the shots Holmes fired.

During the reconstruction, a St. Lucie sheriff’s sergeant standing about 10 feet behind the car fired a .45-caliber pistol with the muzzle pointed to the left of the car. King stood at the open passenger door, then sat in the passenger seat with the door closed, then open.

“To my perception, the sounds of those shots were indistinguishable from one another,” the report states. “Any of those shots could quite convincingly lead the listener to believe they originated from within the driver area of the car.”

According to Alpert’s report, MacNaught believed Semer fired the shots, which was incorrect, but reasonable. He tried to use his Taser on Semer, but only one of two prongs necessary for the Taser to be effective contacted Semer.

“As the situation developed, Sgt. MacNaught ended up inappropriately and unfortunately in Mr. Semer’s car, creating a situation where he had to use force to defend himself,” Alpert’s report states.

Here, Alpert notes that while MacNaught's actions are not proper police procedures, they are not illegal.

"However, his actions were unnecessary and ultimately led to circumstances that resulted in his need to use deadly force as self-defense,” Alpert wrote.

Semer got out and MacNaught chased him on foot. The report says that’s a “highly dangerous police action.” Semer turned back toward MacNaught with a cellphone in hand. MacNaught believed the item was a gun.

The report quotes MacNaught:

“I see a hand and an arm come up … towards my direction where I was standing ... And once I see that, I see that there’s an object in that hand and it was a black and silver or black and white object. And I’m thinking, this is it. This is — I’m not going to see my wife, my kids, he’s got a gun, he’s gonna start shooting again at me. So at that point I start firing at him. I was scared that he was gonna shoot and kill me.”

Alpert’s report states based on the facts and totality of circumstances known to MacNaught, it wasn’t unreasonable for him to perceive Semer to be armed and a threat.

“Because Sgt. MacNaught believed legitimately that Mr. Semer was armed with a firearm, his use of deadly force, in a rapidly evolving and stressful situation does not rise to a level of a crime,” the report states.

But, the officers committed a series of tactical errors that led to deadly force being used, Alpert noted.

“The officers both used poor tactics to allow Mr. Semer to keep the car running and then get in harm’s way by reaching in the car (Holmes) and placing himself between the open door and the car (MacNaught), which started this unfortunate and devastating chain of events,” the report states.

The report also states it’s not clear why MacNaught used a Taser if he thought Semer had a gun.

20/20 HINDSIGHT

Bakkedahl said Alpert used the term “lawful but awful” in some conversations.

“There are things that these officers could have done better,” Bakkedahl said.

Bakkedahl said the law states an officer, when making an arrest, can use “any force he or she deems reasonable … if they believe their lives or the life of another are in danger.”

“The question becomes how we define reasonable,” he said.

He noted a U.S. Supreme Court case in which he said it was acknowledged that “law enforcement is different from you and me.”

“They’re involved in tense, rapidly evolving situations that require them to make split-second decisions, oftentimes based upon less than perfect information,” he said. “What ultimately the court said is the thing we must always guard against is Monday morning quarterbacking or 20/20 hindsight.”

CAMERAS

“Apparently, some cars have cameras that come on when the officer turns the lights on and others will only come on when the officer has lights and siren operating,” the report states. “Officer Holmes asserts that he was never trained how to operate the video system.”

According to Fort Pierce police, the agency has 56 working dashboard cameras in patrol cars. In 2013, the department bought six body cameras. One is being used, but the rest are not until a program is developed and funding secured.

Chief Diane Hobley-Burney, who has been in charge for just more than a year, didn’t know of the body cameras until this week. One of her priorities has been to outfit officers with the cameras. Officials are looking into grants to help buy and maintain them.